The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815

Thus the only ground which the present inferior courts can take, is, that congress may from time to time, regulate, create or abolish such courts, as the public interest may dictate, because such is the very tenure under which they exist.

The second question is, whether the officer is to continue after the office is abolished, as being useless or pernicious.

The constitution declares "that the judge shall hold his office during good behavior." Could it mean, that he should hold this office after it was abolished? Could it mean that his tenure should be limited by behaving well in an office, which did not exist?

It must either have intended these absurdities, or admit of a construction which will avoid them. This construction obviously is, that the officer should hold that which he might hold, namely, an existing office, so long as he did that which he might do, namely, his duty in that office; and not that he should hold an office, which did not exist, or perform duties not sanctioned by law. If therefore congress can abolish the courts, as they did by the last law, the officer dies with his office, unless you allow the constitution to intend impossibilities as well as absurdities. A construction bottomed upon either, overthrows the benefits of language and intellect.

The article of the constitution under consideration closes with an idea, which strongly supports my construction.

The salary is to be paid "during their continuance in office." This limitation of salary is perfectly clear and distinct. It literally excludes the idea of paying a salary, when the officer is not in office; and it is undeniably certain, that he cannot be in office, when there is no office. There must have been some other mode by which the officer should cease to be in office, than that of bad behaviour, because, if this had not been the case, the constitution would have directed "that the judges should hold their offices and salaries during good behaviour," instead of directing "that they should" hold the salaries during their continuance in office. This could only be an abolition of the office itself, by which the salary would cease with the office, tho' the judge might have conducted himself unexceptionably.

This construction certainly coincides with the public opinion, and the principles of the constitution. By neither is the idea for a moment tolerated, of maintaining burthensome sinecure offices, to enrich unfruitful individuals.

Nor is it incompatible with the "good behaviour" tenure, when its origin is considered. It was invented in England, to counteract the influence of the crown over the judges, and we have rushed into the principle with such precipitancy, in imitation of this our general prototype, as to have outstript monarchists, in our efforts to establish a judicial oligarchy; their judges being removable by a joint vote of Lords & commons, and ours by no similar or easy process.

The tenure however is evidently bottomed upon the idea of securing the honesty of Judges, whilst exercising the office, and not upon that of sustaining useless or pernicious offices, for the sake of Judges. The regulation of offices in England, and indeed of inferior offices in most or all countries, depends upon the legislature; it is a part of the detail of the government, which necessarily devolves upon it, and is beyond the foresight of a constitution, because it depends on variable circumstances. And in England, a regulation of the courts of justice, was never supposed to be a violation of the "good behaviour" tenure.

If this principle should disable congress from erecting tribunals which temporary circumstances might require, without entailing them upon the society after these circumstances by ceasing, had converted them in grievances, it would be used in a mode, contemplated neither in its original or duplicate.

Whether courts are erected by regard to the administration of justice, or with the purpose of rewarding a meritorious faction, the legislature may certainly abolish them without infringing the constitution, whenever they are not required by the administration of justice, or the merit of the faction is exploded, and their claim to reward disallowed.

With respect to going into the judiciary system farther at present, the length of this trespass forbids it, and perhaps all ideas tending towards the revision of our constitution would be superfluous, as I fear it is an object not now to be attained. All my hopes upon this question rest I confess with Mr: Jefferson, and yet I know not how far he leans towards the revision. But he will see & the people will feel, that his administration bears a distinct character, from that of his predecessor, and of course discover this shocking truth, that the nature of our government depends upon the complection of the president, and not upon the principles of the constitution. He will not leave historians to say "this was a good president, but like a good Roman Emperor he left the principles of the government unreformed, so that his country remained exposed to eternal repetitions of those oppressions after his death, which he had himself felt and healed during his life."

And yet my hopes are abated by some essays signed "Solon" published at Washington, and recommending amendments to the constitution. They are elegantly written, but meerly skim along the surface of the subject, without touching a radical idea. They seem to be suggested by the pernicious opinion, that the administration only has been chargeable with the defectiveness of our operating government heretofore. Who is the author of these pieces?

Nothing can exceed our exultation on account of the president's message, and the countenance of congress – nothing can exceed the depression of the monarchists. They deprecate political happiness – we hope for the president's aid to place it on a rock before he dies.

It would have given me great pleasure to have seen you here, and I hope it may be still convenient for you to call. I close with your proposal to correspond, if the political wanderings of a man, almost in a state of vegitation, will be accepted for that interesting detail of real affairs, with which you propose occasionally to treat me. I am, with great regard, Dr Sir

Yr: mo: obt: SevṭJohn Taylor1511

APPENDIX C

Cases of which Chief Justice Marshall may have heard before he delivered his Opinion in Marbury vs. Madison. 1512 Also Recent Books and Articles on the Doctrine of Judicial Review of Legislation

Holmes vs. Walton (November, 1779, New Jersey), before Chief Justice David Brearly. (See Austin Scott in American Historical Review, iv, 456 et seq.) If Marshall ever heard of this case, it was only because Paterson, who was Associate Justice with Marshall when the Supreme Court decided Marbury vs. Madison, was attorney-general in New Jersey at the time Holmes vs. Walton was decided. Both Brearly and William Paterson were members of the Constitutional Convention of 1787. (See Corwin, footnote to 41-42.)

Commonwealth vs. Caton (November, 1782, 4 Call, 5-21), a noted Virginia case. (See Tyler, I, 174-75.) The language of the court in this case is merely obiter dicta; but George Wythe and John Blair were on the Bench, and both of them were afterwards members of the Constitutional Convention. Blair was appointed by President Washington as one of the Associate Justices of the Supreme Court.

As to the much-talked-of Rhode Island case of Trevett vs. Weeden (September, 1786; see Arnold: History of Rhode Island, ii, 525-27, Varnum's pamphlet, Case of Trevett vs. Weeden, and Chandler's Criminal Trials, ii, 269-350), it is improbable that Marshall had any knowledge whatever of it. It arose in 1786 when the country was in chaos; no account of it appeared in the few newspapers that reached Virginia, and Varnum's description of the incident – for it can hardly be called a case – could scarcely have had any circulation outside of New England. It was referred to in the Constitutional Convention at Philadelphia in 1787, but the journals of that convention were kept secret until many years after Marbury vs. Madison was decided.

It is unlikely that the recently discussed case of Bayard vs. Singleton (North Carolina, November, 1787, 1 Martin, 48-51), ever reached Marshall's attention except by hearsay.

The second Hayburn case (August, 1792, 2 Dallas, 409; and see Annals, 2d Cong. 2d Sess. 1319-22). For a full discussion of this important case see particularly Professor Max Farrand's analysis in the American Historical Review (xiii, 283-84), which is the only satisfactory treatment of it. See also Thayer: Cases on Constitutional Law (1, footnote to 105).

Kamper vs. Hawkins (November, 1793, 1 Va. Ca. 20 et seq.), a case which came directly under Marshall's observation.

Van Horne's Lessee vs. Dorrance (April, 1795, 2 Dallas, 304), in which Justice Paterson of the Supreme Court said all that Marshall repeated in Marbury vs. Madison upon the power of the Judiciary to declare legislation void.

Calder vs. Bull (August, 1798, 3 Dallas, 386-401), in which, however, the Court questioned its power to annul legislation. Cooper vs. Telfair (February, 1800, 4 Dallas, 14). These last two cases and the Hayburn Case had been decided by justices of the Supreme Court.

Whittington vs. Polk (Maryland, April, 1802, 1 Harris and Johnson, 236-52). Marshall surely was informed of this case by Chase who, as Chief Justice of Maryland, decided it. The report, however, was not published until 1821. (See McLaughlin: The Courts, the Constitution, and Parties, 20-23.) In his opinion in this case Justice Chase employed precisely the same reasoning used by Marshall in Marbury vs. Madison to show the power of courts to declare invalid legislative acts that violate the Constitution.

The old Court of Appeals, under the Articles of Confederation, denounced as unconstitutional the law that assigned circuit duties to the judges of that appellate tribunal; and this was cited by Thomas Morris of New York and by John Stanley of South Carolina in the judiciary debate of 1802.1513

As to the statement of Chief Justice, later Governor Thomas Hutchinson of Massachusetts, in 1765, and the ancient British precedents, cited by Robert Ludlow Fowler in the American Law Review (xxix, 711-25), it is positive that Marshall never had an intimation that any such pronouncements ever had been made.

Neither, in all likelihood, had Marshall known of the highly advertised case of Rutgers vs. Waddington, decided by a New York justice of the peace in 1784 (see American Law Review, xix, 180), and the case of Bowman vs. Middleton (South Carolina, May, 1792, 1 Bay, 252-55) which was not printed until 1809. (See McLaughlin, 25-26.) The same may be said of the North Carolina controversy, State vs. – , decided in April, 1794 (1 Haywood, 28-40), and of Lindsay et al vs. Commissioners (South Carolina, October, 1796, 2 Bay, 38-62), the report of which was not printed until 1811.

For a scholarly treatment of the matter from an historical and legally professional point of view, see Doctrine of Judicial Review by Professor Edward S. Corwin of the Department of History and Politics, Princeton University; also The Courts, the Constitution, and Parties, by Professor Andrew C. McLaughlin of the Department of History, University of Chicago. The discussion by these scholars is thorough. All cases are critically examined, and they omit only the political exigency that forced Marshall's opinion in Marbury vs. Madison.

The student should also consult the paper of William M. Meigs, "The Relation of the Judiciary to the Constitution," in the American Law Review (xix, 175-203), and that of Frank E. Melvin, "The Judicial Bulwark of the Constitution," in the American Political Science Review (viii, 167-203).

Professor Charles A. Beard's The Supreme Court and the Constitution contains trustworthy information not readily accessible elsewhere, as well as sound comment upon the whole subject.

Judicial Power and Unconstitutional Legislation, by Brinton Coxe, although published in 1893, is still highly valuable. And Power of Federal Judiciary over Legislation, by J. Hampden Dougherty, will be profitable to the student.

Marbury vs. Madison is attacked ably, if petulantly, by Dean Trickett, "Judicial Nullification of Acts of Congress," in the North American Review (clxxxv, 848 et seq.), and also by James B. McDonough, "The Alleged Usurpation of Power by the Federal Courts," in the American Law Review (xlvi, 45-59). An ingenious and comparatively recent dissent from the theory of judicial supervision of legislation is the argument of Chief Justice Walter Clark of the Supreme Court of North Carolina, "Government by Judges." (See Senate Document No. 610, 63d Congress, 2d Session.)

With regard to the possible effect on American law of foreign assertions of the supremacy of the Judiciary, particularly that of France, the Address of James M. Beck of the New York Bar, before the Pennsylvania Bar Association on June 29, 1915, and reported in the Twenty-first Annual Report of that Association (222-51), is a careful and exhaustive study.

APPENDIX D

Text, as generally accepted, of the Cipher Letter of Aaron Burr to James Wilkinson, dated July 29, 1806 1514

Your letter postmarked thirteenth May, is received. At length I have obtained funds, and have actually commenced. The Eastern detachments, from different points and under different pretences, will rendezvous on the Ohio first of November. Everything internal and external favors our views. Naval protection of England is secured. Truxtun is going to Jamaica to arrange with the admiral on that station. It will meet us at the Mississippi. England, a navy of the United States, are ready to join, and final orders are given to my friends and followers. It will be a host of choice spirits. Wilkinson shall be second to Burr only; Wilkinson shall dictate the rank and promotion of his officers. Burr will proceed westward first August, never to return. With him goes his daughter; her husband will follow in October, with a corps of worthies. Send forthwith an intelligent and confidential friend with whom Burr may confer; he shall return immediately with further interesting details; this is essential to concert and harmony of movement. Send a list of all persons known to Wilkinson west of the mountains who could be useful, with a note delineating their characters. By your messenger send me four or five commissions of your officers, which you can borrow under any pretence you please; they shall be returned faithfully. Already are orders given to the contractor to forward six months' provisions to points Wilkinson may name; this shall not be used until the last moment, and then under proper injunctions. Our object, my dear friend, is brought to a point so long desired. Burr guarantees the result with his life and honor, with the lives and honor and the fortunes of hundreds, the best blood of our country. Burr's plan of operation is to move down rapidly from the Falls, on the fifteenth of November, with the first five hundred or a thousand men, in light boats now constructing for that purpose; to be at Natchez between the fifth and fifteenth of December, there to meet you; there to determine whether it will be expedient in the first instance to seize on or pass by Baton Rouge. On receipt of this send Burr an answer. Draw on Burr for all expenses, etc. The people of the country to which we are going are prepared to receive us; their agents, now with Burr, say that if we will protect their religion, and will not subject them to a foreign Power, that in three weeks all will be settled. The gods invite us to glory and fortune; it remains to be seen whether we deserve the boon. The bearer of this goes express to you. He is a man of inviolable honor and perfect discretion, formed to execute rather than project, capable of relating facts with fidelity, and incapable of relating them otherwise; he is thoroughly informed of the plans and intentions of Burr, and will disclose to you as far as you require, and no further. He has imbibed a reverence for your character, and may be embarrassed in your presence; put him at ease, and he will satisfy you.

APPENDIX E

Excerpt from Speech of William Wirt at the Trial of Aaron Burr 1515

Who is Blennerhassett? A native of Ireland, a man of letters, fled from the storms of his own country to find quiet in ours. His history shows that war is not the natural element of his mind. If it had been, he never would have exchanged Ireland for America. So far is an army from furnishing the society natural and proper to Mr. Blennerhassett's character, that on his arrival in America, he retired even from the population of the Atlantic States, and sought quiet and solitude in the bosom of our Western forests.

But he carried with him taste and science and wealth; and lo, the desert smiled! Possessing himself of a beautiful island in the Ohio, he rears upon it a palace and decorates it with every romantic embellishment of fancy. A shrubbery, that Shenstone might have envied, blooms around him. Music, that might have charmed Calypso and her nymphs, is his. An extensive library spreads its treasures before him. A philosophical apparatus offers to him all the secrets and mysteries of nature. Peace, tranquillity, and innocence shed their mingled delights around him. And to crown the enchantment of the scene, a wife, who is said to be lovely even beyond her sex and graced with every accomplishment that can render it irresistible, had blessed him with her love and made him the father of several children. The evidence would convince you, that this is but a faint picture of the real life.

In the midst of all this peace, this innocent simplicity and this tranquillity, this feast of the mind, this pure banquet of the heart, the destroyer comes; he comes to change this paradise into a hell. Yet the flowers do not wither at his approach. No monitory shuddering through the bosom of their unfortunate possessor warns him of the ruin that is coming upon him. A stranger presents himself. Introduced to their civilities by the high rank which he had lately held in his country, he soon finds his way to their hearts, by the dignity and elegance of his demeanor, the light and beauty of his conversation and the seductive and fascinating power of his address.

The conquest was not difficult. Innocence is ever simple and credulous. Conscious of no design itself, it suspects none in others. It wears no guard before its breast. Every door and portal and avenue of the heart is thrown open, and all who choose it enter. Such was the state of Eden when the serpent entered its bowers.

The prisoner, in a more engaging form, winding himself into the open and unpractised heart of the unfortunate Blennerhassett, found but little difficulty in changing the native character of that heart and the objects of its affection. By degrees he infuses into it the poison of his own ambition. He breathes into it the fire of his own courage; a daring and desperate thirst for glory; an ardour panting for great enterprises, for all the storm and bustle and hurricane of life.

In a short time the whole man is changed, and every object of his former delight is relinquished. No more he enjoys the tranquil scene; it has become flat and insipid to his taste. His books are abandoned. His retort and crucible are thrown aside. His shrubbery blooms and breathes its fragrance upon the air in vain; he likes it not. His ear no longer drinks the rich melody of music; it longs for the trumpet's clangor and the cannon's roar. Even the prattle of his babes, once so sweet, no longer affects him; and the angel smile of his wife, which hitherto touched his bosom with ecstasy so unspeakable, is now unseen and unfelt.

Greater objects have taken possession of his soul. His imagination has been dazzled by visions of diadems, of stars and garters and titles of nobility. He has been taught to burn with restless emulation at the names of great heroes and conquerors. His enchanted island is destined soon to relapse into a wilderness; and in a few months we find the beautiful and tender partner of his bosom, whom he lately permitted not the winds of summer to visit too roughly, we find her shivering at midnight, on the winter banks of the Ohio and mingling her tears with the torrents, that froze as they fell.

Yet this unfortunate man, thus deluded from his interest and his happiness, thus seduced from the paths of innocence and peace, thus confounded in the toils that were deliberately spread for him and overwhelmed by the mastering spirit and genius of another – this man, thus ruined and undone and made to play a subordinate part in this grand drama of guilt and treason, this man is to be called the principal offender, while he, by whom he was thus plunged in misery, is comparatively innocent, a mere accessory! Is this reason? Is it law? Is it humanity? Sir, neither the human heart nor the human understanding will bear a perversion so monstrous and absurd! So shocking to the soul! So revolting to reason! Let Aaron Burr then not shrink from the high destination which he has courted, and having already ruined Blennerhassett in fortune, character and happiness forever, let him not attempt to finish the tragedy by thrusting that ill-fated man between himself and punishment.1516

APPENDIX F

Essential Part of Marshall's Opinion on Constructive Treason delivered at the Trial of Aaron Burr, on Monday, August 31, 1807 1517

The place in which a crime was committed is essential to an indictment, were it only to shew the jurisdiction of the court. It is also essential for the purpose of enabling the prisoner to make his defence… This necessity is rendered the stronger by the constitutional provision that the offender "shall be tried in the state and district wherein the crime shall have been committed," and by the act of congress which requires that twelve petty jurors at least shall be summoned from the county where the offence was committed.

A description of the particular manner in which the war was levied seems also essential to enable the accused to make his defence. The law does not expect a man to be prepared to defend every act of his life which may be suddenly and without notice alleged against him. In common justice the particular fact with which he is charged ought to be stated, and stated in such a manner as to afford a reasonable certainty of the nature of the accusation and the circumstances which will be adduced against him.

Treason can only be established by the proof of overt acts; and … those overt acts only which are changed in the indictment can be given in evidence, unless perhaps as corroborative testimony after the overt acts are proved. That clause in the constitution too which says that in all criminal prosecutions the accused shall enjoy the right "to be informed of the nature and cause of the accusation" is considered as having a direct bearing on this point. It secures to him such information as will enable him to prepare for his defence.

It seems then to be perfectly clear that it would not be sufficient for an indictment to allege generally that the accused had levied war against the United States. The charge must be more particularly specified by laying what is termed an overt act of levying war…

If it be necessary to specify the charge in the indictment, it would seem to follow, irresistibly, that the charge must be proved as laid… Might it be otherwise, the charge of an overt act would be a mischief instead of an advantage to the accused. It would lead him from the true cause and nature of the accusation instead of informing him respecting it.

But it is contended on the part of the prosecution that, although the accused had never been with the party which assembled at Blennerhassett's island, and was, at the time, at a great distance, and in a different state, he was yet legally present, and therefore may properly be charged in the indictment as being present in fact.